Still The Same

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Something has been gnawing away at me the past week and I’ve been having a hard time articulating what exactly it is. The Toronto Fringe is on and my feeds have been flooded with emotional posts about the ups and downs of mounting a show, of the love people have felt when it’s received well, of the anger and abuse they feel when there’s an unfavourable review – the consistent thing is that everyone seems to rally around and declare their support;

“All Fringe shows deserve a 5 star review”

” This review was unfair, we need to all get out and support the show”

“I’m overwhelmed by the love and support I have received from everyone, thank you”

Looking at this you’d think we all exist in a very supportive, inclusive community.

We don’t.

I’ve written before about my shitty experiences with Theatre 20 and in particular, Brian Goldenberg, and doubtless some will read this and think I should let it go. The problem is, nothing has changed. At least, not for the perpetrators.

This year Brian has 3 shows in the Toronto Fringe Festival – a good friend of mine is acting in one of them, something this friend avoided telling me so as not to make things “awkward”. He knows the whole story. He was one of the first people I told, years ago, when this started. He doesn’t mind working with someone who knowingly discriminated against someone because of a mental illness and who thought that someone deserves to be fired if they try to assert their human rights.

This topic has come up several times in the past few days, while hanging around the tent, and I’ve been told by multiple friends that they know the story, believe me, but will not be saying anything or changing the way they interact with him because they’ve known him for a while and again, don’t want to make things “awkward”. Don’t want to cause any “trouble”. They support me, they’re just not willing to show that, or say that to anyone but me.

The same thing happened when I first wrote about this. I kept quiet for over a year, waiting until I had proof, posting the results of a legal hearing rather than sharing my own thoughts and feelings. I was right. That was proven, non-subjective. A lot of people read that blog. Quite a few sent me private messages and shared similar stories about the men in question. But no one from the community said anything out in the open. Nothing changed.

Around that time a reporter (someone who knows well and writes about the theatre) reached out to do an interview about it. I had hopes that, with this being published in something major, more would see it and maybe something would change. Delays caused it to eventually be dropped. I don’t blame him, he’s reached out a couple times to apologize, once quite recently. He said there may be something happening soon that could lead to him reviving the story – I hope so. But for now, nothing has happened. Nothing changed.

I saw Brian in the audience at a performance the other night, ironically for a show about a woman who struggles with anxiety and depression and eventually leaves her job because of it. Shows like this are celebrated because it’s “important to eliminate the stigma” around mental health, to recognize it as a serious, legitimate illness, to support those who are suffering – but here is a documented, proven case of discrimination having taken place in our own tiny community, and nothing has changed. He didn’t even bother to come to the hearing. It didn’t cost him his job, clearly hasn’t damaged his reputation. He did read the post, because he contacted the HRTO (with me cc’d) to accuse me (wrongly) of slander, so clearly he knows that this behaviour should be damaging, but his lack of recognition let alone an apology tells me he really doesn’t care.

None of this changed him, but it did change me.

I missed weeks of work leading up to the hearing, costing me money I couldn’t afford to lose, piling on to the already nearly unbearable stress I deal with from my anxiety, daily, I’m sure it damaged my reputation because whether it was justified or not, no one wants an employee who misses 3 weeks of work, and here we are, another year later, and I’m still feeling the residual effects. I question my importance to my friends, and whether there’s any point in confiding in them. I question the support of my community, and whether there’s any sincerity behind the daily posts about acceptance and inclusion. I question myself, and whether saying this will give me any peace of mind or just further isolate me. I question whether I want to be a part of a community that seems to be more interested in appearing inclusive and supportive than actually doing anything to achieve that.

It’s time for something to change.

Me Too.

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“If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet,” she wrote. The movement started in response to the Harvey Weinstein scandal and its ensuing fall out.
Every girl on my Facebook changed their status to this yesterday. Another very small step towards solidarity that will ultimately not change anything. It’s frustrating. I’m going to rant now, apologies if it’s not the best written piece on here.
I’m sure most of us have more than one story, especially considering harassment is included in this, and that’s something that is often endured on a weekly, and for some, daily basis. As for assault, the numbers there are frighteningly high as well. I remember being in grade 7, and being told by our teacher that 1 in 5 of us would be assaulted in our lifetime; sitting with a group of 5 girls, this stuck with me. Now, as an adult, I’ve heard that statistic raised to 1 in 4, and I know that out of that group from so many years ago at least 2 had that fate.
So how is this status change helping? I think all of us reasonable people know that, even if we don’t know which ones, someone we are close to has been the victim of sexual harassment or assault. The problem with these simple little remarks is that they are not calling out the people who are the perpetrators, and often, when someone does, they are labeled a vindictive bitch, and find their personal lives being scrutinized by those who are sure they were somehow “asking for it”. We all know about the victims, but how about the scum that made them victims in the first place?
Admittedly, there’s a lot of reasons for someone to not want to come forward and name names. And I myself have stories I am not interested in sharing. But as one of them has already been written about twice on this blog, and is a matter of public record, I’m going to share it one more time.
In 2015 I worked for Theatre 20, and I thought I had my dream job, working there as Producer. I was wrong. I won’t bother getting into all the hell that was a part of the daily job, because it’s off topic, instead I’ll skip ahead to the sexual harassment that somehow lead to me, rather than the perpetrator, being fired.
As I mentioned in a past blog, Chris Weber (currently working as VP of Whole Life Balance Canada), a married man 11 years my senior who was a member of our Board, and so in a position of power, had on numerous times made inappropriate advances. The only one which I had real “proof” of, and so what was the main focus of that aspect of my HRTO claim, was a text message in which he stated he wanted to see me in a “shorter dress”.
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Admittedly, much worse things have been said, but given the power imbalance this concerned me enough to mention it to my boss, who also happened to be the only other (full-time) employee at the company, Brian Goldenberg. Apparently he never addressed it in any way, and in the evidence for the hearing (he didn’t actually bother to attend the hearing himself), tried to say I had told him it was “no big deal” – not sure why I would’ve bothered saying anything if that was the case…
Eventually, the harassment from Weber and other members of the board got to the point where I felt I couldn’t work there under those circumstances, and I told Brian this. I asked him to deal with it, and when weeks went by with no change, I said that if he wouldn’t do something about it, I would. I offered to speak to the Board myself, and advised that if the inappropriate behaviour didn’t stop after that, I would be forced to file a Human Rights claim about it. For this, I was fired.
Again, you can read all about it in my blog, Finally, but the gist of it is, I was fired with no notice and no cause, and at the hearing won my case, with the HRTO determining that they were guilty of Sexual Harassment (Weber, specifically, though this was against the company, not an individual), and Threat of Reprisal (Brian, in this case). I was supposed to be awarded financial compensation for this, but they have ignored this judgement as well as letters from my lawyer, so here we are, years after the initial incident, and all that has changed is I no longer work there (well, in fairness, the company did fold, but for different reasons).
Why would anyone speak up? I lost my job over it. I wasn’t traumatized from the harassment so that was the worst of it, if you don’t count the years of time and money and stress trying to take this through court. I won my case, which should mean that something is done but they refuse to pay the small amount of money I was awarded, and the perpetrators continue to work in the same community (Brian had a show in the Fringe this past year), and the HRTO isn’t punitive so essentially nothing was done to either of them. And this is still a better turnout than a lot of women have. Some try a civil case and throw thousands of dollars into it. Some try criminal (where worse things have happened), and are attacked on the stand as the defence tries to paint them as some whore. I’ve heard so many terrible stories from people I know, that are not mine to share, but I can say I’m not surprised that they didn’t speak up. It rarely goes well. So I guess this #metoo is the safest way someone can say something because basically everyone can say it (isn’t that a disgusting thought?).
But you know what I’d love to see? (and I know, this totally makes me a vindictive bitch out on a “witchhunt”), instead of #metoo how about #hedid, and you name the fucker who’s put you through shit. Let’s stop quietly adding ourselves to the list of people who are treated like meat, or treated like idiots, or treated like bitches if we dare to stand up for ourselves. This is not something where the focus should be on the victims, it should be on a perpetrators. Maybe that will stop them, or at least warn the next girl to watch out. I’m so sick of seeing how many people are a part of #metoo.
/End rant.

Finally.

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It’s going on 2 years, more than 3 months since the hearing, and I finally have the results of my Human Rights complaint against Theatre 20.

It’s been a long day, so I’m not going to comment on it much now, I’ll just post a link to the entire document (which is public information, and will be available on the HRTO website soon, not sure exactly how long it takes them to post them but I’ve seen some from the end of March), and put some excerpts here.

I’ll point out, again, that I am well within my legal right to post all of this, though I’m sure I’ll get more complaints for doing it. I think it’s important to speak up when you’re mistreated, especially when the HRTO agrees – if I hear complaints again that this will damage anyone’s reputation I’ll repeat, as before, it’s not my saying it that’s hurting you, it’s that you’ve done it.

You can read a copy of the entire decision, here: 2017 HRTO 394 Dix Final 4-April-2017.
The only thing I have edited is the contact information for myself and the Respondent at the top of the page.

For those of you that don’t feel like reading all 43 pages, here’s the Coles Notes version:

Injury to Dignity & Self-Respect

I didn’t manage to prove all aspects of my case, unfortunately, but that wasn’t surprising considering it was very difficult for me to find any proof. Many of the things that were said or done happened in-person, so I had no written documents, no video or anything to support my claims. Since I worked with Brian Goldenberg alone (with the exception of a part-time student employee sometimes, and some volunteers, none of whom were privy to the conversations and issues that I raised in my complaint), the majority of really was “he said/she said”, though of course in this situation, the “he” didn’t even attend the hearing. So it came down to me versus the men in my complaint, none of whom were there for daily operations and all of whom I had complaints against; nonetheless, I was able to prove my points well enough that I was awarded “compensation for injury to dignity, feelings and self-respect” (page 43). So let’s look at what that means.

Well in my case, it broke down into 2 main sections; my complaint of sexual harassment from Chris Weber, and the threat of reprisal I received when stating that I would file a formal complaint if that harassment, and other issues, did not stop. When it comes to sexual harassment and the code;

[48] Section 7(3)(a) of the Code provides that “every person has a right to be free from a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome”.

As the Vice Chair notes in the assessment;

[49] Mr. Weber was clearly a person in a position to confer, grant or deny a benefit to the applicant. He was a member of the respondent’s board of directors where the applicant was an employee. He described himself as being in a leadership and mentorship role to the applicant. He had recommended her to be hired for her position with the respondent.

While there were other issues as well, the one piece of hard evidence I had in regards to this was the text message, which I posted in my last blog about the hearing;

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As I stated in my claim, this message made me uncomfortable not just in its nature, but more so in the fact that he was,

  1. Was in a position of power above me
  2. Considerably older than me
  3. Married (and recently, too)
  4. Was apparently hitting on me to my face, while insulting me and complaining about me behind my back

It felt very much like a power trip, and apparently the Vice Chair agreed;

[50] Even if I were to accept Mr. Weber’s evidence that the semi-colon was intended by him as a smiley face, and not as a winky face, and that the “hehehe” was intended as a light-hearted hee-hee-hee, the fact remains that Mr. Weber sent text messages to the applicant describing her outfit from the event as “hot” and telling her that he was “looking forward to [her] coming out with the shorter dress”. In my view, these comments are clearly and obviously sexual in nature.

He goes on to discuss the legal definition of an “advance” and what that means in regards to the code, all of which again, you can read in full if you click the link at the top. The main point however is summed up here;

[50] …I have no hesitation in finding that Mr. Weber ought reasonably to have known that these comments were unwelcome to the applicant.

How does that come back to what is officially a complaint against The Twenty Theatre Company? Well;

[51] As Mr. Weber is vice-chair of the board of directors of the respondent theatre company, I find that Mr. Weber is part of the directing mind of the respondent. As such, the respondent is liable for his conduct: see Halliday v. Van Toen Innovations Incorporated, 2013 HRTO 583; Strauss v. Canadian Property Investment Corporation (No. 2), (1995) 24 C.H.R.R. D/43 at para. 55; and Ghosh v. Domglas (No. 2), (1992) 17 C.H.R.R. D/216 at para. 54.

[52] Accordingly, I find that the respondent is liable for the violation of the applicant’s rights under s. 7(3)(a) of the Code.

Their other violation of the Human Rights Code was in the threat of reprisal; I told Brian that I had complaints, he said he’d deal with them, he didn’t (according to testimony, he never even shared them with the Board Members), so I said I would speak to them myself and that if things didn’t change, I would have to file a complaint. They stated that was a reason for my termination, which is illegal.

In testimony from Board Member Dave Morris, it was clearly stated that this was the case, as is described here;

[78] Mr. Morris testified that the executive director said that the “penny dropped” in his mind and he decided to terminate the applicant’s employment after she had indicated to him that unless he spoke up to the board and committee members about their behavior towards the applicant, then she was going to go do it herself. Mr. Morris testified that this was described to him by the executive director as the “deciding moment”.

In regards to how exactly this is dealt with by the code;

[105] Section 8 of the Code provides, in its relevant part: “Every person has a right to claim and enforce his or her rights under this Act . . . without reprisal or threat of reprisal for so doing”. In Noble v. York University, 2010 HRTO 878 at para. 33, the Tribunal stated that in an application alleging reprisal, the following elements must be established: (1) an action taken against, or threat made to, the applicant; (2) the alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and (3) an intention on the part of the respondent to retaliate for the claim or attempt to enforce the right. Intent may be proved by direct evidence or by inference: Entrop v. Imperial Oil Ltd. (No. 7) (1995), 23 C.H.R.R. D/213, upheld with respect to reprisal, (2000), 37 C.H.R.R. 481, 2000 CanLII 16800 (ON CA).

And when it comes to my case?

[106] With regard to the first element, there is no question that the termination of the applicant’s employment is an adverse or negative action taken against the applicant.

[107] With regard to the second element, the first issue is whether and, if so, when the applicant claimed or attempted to enforce her Code rights

[108] While I am not convinced that a generic reference to “workplace rights” would be sufficient to establish that an applicant had claimed her Code rights, I note that her use of this term was clearly understood by the executive director to refer to human rights. This is evidenced by the executive director’s e-mail dated July 23, 2015, in which he makes reference to the applicant’s “threat of human rights action against us on Tuesday night” (July 21, 2015 was a Tuesday). As a result, I find that, whatever words she used, the applicant was clearly understood by the executive director, and hence by the respondent, to have claimed and threatened to enforce her human rights under the Code at least as of the night of July 21, 2015.

[109] The next question for me to consider is whether the applicant’s claim of, and threat to enforce, her human rights was related to the decision to terminate her employment…on the basis of Mr. Morris’ evidence, it was this very text from the applicant, in which she threatened to go directly to the board members to raise her concerns about how she perceived they were treating her and the executive director, which was the proverbial “final straw” that caused the executive director to make the final termination decision.

Basically it needs to be proven that, not only did a say I would make a complaint and that I felt my rights were being violated, but that they understand it as such, and that then I faced reprisal because of it. The result?

[111] As a result, I find that the applicant has established that her right to be free from reprisal has been violated by the respondent, in contravention of s. 8 of code on the basis of my finding that her threat of human rights action against the respondent was a factor in the final decision to terminate the applicant’s employment. In making this finding, I am cognizant of the well-established principle that a protected right under the Code need not be the only or even the principal reason for the adverse treatment, and that it is sufficient for the protected right to have contributed to, or played a role in, the adverse treatment: see Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at paras. 43 to 52.

The amount of money I am supposed to be compensated with will be just enough (literally) to pay back the debt I have from the loans I had to take to avoid being homeless after losing that job. So please don’t think I’m getting rich off this, or coming out ahead. As I’ve said from the start I was much more concerned with having this heard, and I do understand that a judgement saying I’m awarded a certain amount doesn’t mean I’ll actually ever see it, so who knows how that will go. So I guess it’s not actually all over, but I can’t tell you the relief I felt reading this today.

Finally, while it didn’t exactly play into the end result, since this is an issue of particular importance to me, I’ll end this off with this note;

[101] The third allegation of discrimination because of disability relates to the respondent’s decision to cut off her access to her e-mail account on July 23, 2015. There can be no dispute that the applicant’s medical condition was expressly relied upon by the executive director as stated in the July 23, 2015 e-mail as one of the reasons for cutting off access. I further find that the executive director’s fear that the applicant may become “destructive” in light of the decision to terminate her employment plays on stereotypes about persons with mental health disabilities.

I have clinical depression and anxiety with agoraphobia. I have been being treated for part of this for about 7 years, and the other about 4, and have been medicated most of this time. It does sometimes make it difficult for me to get out of bed, to go outside, to not want to crawl into a hole and die, BUT, it in no way makes me “destructive” and the fact that Brian Goldenberg explicitly said to Board Members that my “condition” meant I couldn’t be trusted is not only insulting but idiotic. I feel like most people will realize it, but I’ve still gotta say it.

If I could give anyone advice from any of this (and of course, this is not legal advice, it’s just what I wish I had done differently), it would be to disclose any disabilities early on in your job. Admittedly, not in the first 3 months; you can be fired for anything then, and the sad truth is that most people are not very accepting or tolerant of mental illness or disability, so I would not count on them being “good people” about it. However, despite the fact that Brian stated to the Board Members that “my condition” was a reason for not trusting me, I was unable to prove that I was fired based on discrimination due to a disability, primarily because I made other excuses for it before. Since I was initially told it was fine to work from home, I didn’t think agoraphobia would be a problem. If I could have days where I didn’t need to go out, I could still work. However, when I had those days, instead of saying that I needed to stay home because of anxiety or depression, I would say I was “sick”. While technically that was true, and while I did that because of the types of negative responses I had had in the past when I did disclose my mental illness, it eventually came back to bite me, as they could now claim that my disability didn’t prevent me from doing any work, and that it had never come up before. It’s sort of a catch 22 in my opinion, but that’s how it is, I suppose. I’ve been very lucky in that, the jobs i’ve had since then – at Tarragon Theatre and now with Canamedia’s Teens 101 – I’ve worked with incredibly kind, accepting and understanding people. And while I have still had many days where I couldn’t go to work, it was never because of what was waiting for me there. Those were and are both happy and (to use the popular term of the moment) “safe places”.

-E.